by David S. Mohl
Jackson Lewis P.C. is an IMA Member
A recent Third Circuit case, Sessoms v. Trs. Of the Univ. of Pa., 2018 U.S. App. LEXIS 16611 (3rd Cir. June 20, 2018), serves as a reminder that while the Americans with Disabilities Act (“ADA”) requires employers to provide reasonable accommodations to disabled employees, it does not obligate an employer to provide the accommodation requested by the employee. An employer may choose among reasonable accommodations as long as the chosen accommodation is effective.
Sessoms, a University of Pennsylvania (“Penn”) employee, was out on an approved leave of absence relating to mental and physical disabilities. Prior to returning to work, she requested a part-time schedule (with eventual plans to return full time) and to be transferred to a different supervisor in a “lower-stress department/office.”
While Penn agreed to accommodate Sessoms part-time schedule request, it declined to transfer her to a different supervisor. Despite Penn’s efforts, Sessoms was unwilling to agree to any accommodation that included continuing to report to her current supervisor. As a result, Penn terminated her employment.
In affirming the District Court’s grant of summary judgment in favor of Penn, the Court found that Penn demonstrated that it made good faith efforts in attempting to accommodate Sessoms: her supervisors met with her, considered her accommodation requests, and offered several accommodations, including a part-time work schedule.
In its ruling, the Court noted that “[w]here an employee requests an accommodation in the form of a transfer, she must make a showing that this accommodation is possible, i.e., the existence of an equivalent-level, vacant position for which the employee could qualify. A reasonable accommodation does not entitle an employee to a supervisor ideally suited to their needs.” While Sessoms wanted to transfer to another department or supervisor, she failed to provide any evidence that vacant positions existed to which she could be transferred. (It is well settled that a reasonable accommodation does not include creating a new position for an employee if no vacant position exists for which the employee is qualified.)
The ADA requires an employer to provide a reasonable accommodation. It does not limit an employer to providing only an accommodation requested by an employee, or a more costly or burdensome accommodation, if there are other effective reasonable accommodations. That said, if providing an employee’s preferred accommodation does not create a burden or additional expense, that option should be seriously considered.
As noted by the Equal Employment Opportunity Commission in its Enforcement Guidance, if more than one accommodation is effective, “the preference of the individual with a disability should be given primary consideration. However, the employer providing the accommodation has the ultimate discretion to choose between effective accommodations.”
Employers should ensure that they have a well-documented interactive process. Penn’s ability to demonstrate its good-faith efforts in attempting to accommodate Sessoms was noted by the Court in its ruling.
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